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This case challenges the legality under Section 1 of the Sherman Act of a
territorial allocation created by a private agreement in 1987. ER 80.(1) The United
States sued because that agreement ("Restrictive Clause") prevents Hazera, a major
and innovative rival of LSL, from ever (1) selling currently existing or future long
shelf-life tomato seeds to growers in the United States, and (2) selling currently
existing or future seeds to growers in Mexico who would export the bulk of the
resulting tomatoes to the United States. The Restrictive Clause thereby prevents
competition to provide millions of United States consumers with superior fresh-market winter tomatoes.

While defendants say that the case involves only "foreign" conduct in seeds
(LSLBr. 4-5),(2) the only "conduct" at issue here is the Restrictive Clause, a restraint
aimed at United States farmers and consumers of tomatoes. The purpose of LSL
joining with Hazera to develop long shelf-life seeds was to satisfy United States
consumers' tastes for tomatoes. ER 3 ¶ 4, ER 7 ¶ 20, ER 161 ¶ 16. Defendants'
own documents confirm that United States consumer demand for fresh-market
winter tomatoes drives the long shelf-life seed business. ER 130; see also ER 161
¶ 16. Tomatoes and tomato seeds are different things, but demand for the seeds is
entirely derivative of the United States consumer demand for the tomatoes, and the
main reason for creating long shelf-life tomatoes is to enable them to reach distant
markets in the United States without spoiling.(3)

The district court rejected defendants' exclusively "foreign" characterization
of the case when it determined that the complaint alleged both domestic and
foreign conduct. ER 384. It dismissed allegations regarding the former under Rule
12(b)(6) and allegations regarding the latter under Rule 12(b)(1). The United
States' opening brief showed that these rulings are unsound because they rest on
significant legal errors. As shown below, defendants' defense of those rulings is
also unsound. On behalf of United States consumers, the United States should
have an opportunity to develop evidence to prove its claims.

ARGUMENT

The District Court's Dismissal Under Rule 12(b)(6) Was Error

The district court dismissed the domestic part of the complaint on the ground
that it defined an overbroad market. ER 384-87. The United States showed in its
opening brief (at 16-24) that this ruling is wrong for three reasons. First, the
complaint alternatively alleged a "naked restraint" unlawful per se under Section 1
of the Sherman Act, for which no market at all need be pled. Second, the
complaint satisfied Fed. R. Civ. P. 8(a)'s requirement of a "short and plain
statement of the claim," and no more detail was required.(4) Third, the supposed
overbreadth has no significance to the substantive antitrust inquiry in this case and
so is no basis for dismissing the complaint.(5)

Defendants now argue: (1) that the United States never alleged a per se
offense, (2) that even if it did, such an offense is barred as a matter of law, and (3)
that in any event the district court was right (LSLBr. 46-53). These arguments are
all unsound.

1. Paragraph 6 of the complaint plainly alleges that the Restrictive Clause
is "a naked restraint of trade in violation of Section 1 of the Sherman Act." ER 4 ¶
6. To declare such a territorial restraint to be a "naked restraint" is equivalent to
declaring it to be per se illegal. E.g., Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49
(1990) (per curiam) ("This Court has reiterated time and time again that
'[h]orizontal territorial limitations . . . are naked restraints of trade with no purpose
except stifling of competition.' Such limitations are per se violations of the
Sherman Act.") (emphasis added, citation omitted). And as the district court
rightly said, ER 383, litigation of a per se offense does not require market
definition at all. We do not understand defendants to dispute these principles.
They do argue that the "naked restraint" language of ¶ 6 serves only to "refute
numerous defenses available in a rule of reason case" (LSLBr. 47 n.22), but that
language addresses whether such defenses are available at all, i.e., whether the
restraint is per se illegal. Moreover, ¶ 7 of the complaint clearly alleged a rule of
reason offense in the alternative. Defendants' reading would make one of these
paragraphs redundant. To the extent that defendants suggest that the United States
will not be able to prove its per se allegation (LSLBr. 47), the suggestion is
premature and cannot justify a Rule 12(b)(6) dismissal of a well-pled per se
violation.

2. Defendants' fallback argument that "per se analysis is never appropriate
when considering conduct that has occurred outside the United States" (LSLBr. 48,
citing Metro Industries, Inc. v. Sammi Corp., 82 F.3d 839, 845 (9th Cir. 1996)
("Sammi")) is also wrong. First, Sammi deals exclusively with foreign conduct,
but the district court's Rule 12(b)(6) ruling expressly dealt with domestic conduct.
Indeed, its entire discussion of the United States' supposed failure properly to
define the market comes under the heading: "IV. DOMESTIC CONDUCT." ER
384. Thus, the district court did not accept defendants' position that "all the
relevant conduct" occurred outside the United States (LSLBr. 48) but found instead
that "the complaint concerns both foreign and domestic conduct by Defendants."
ER 384.

Moreover, defendants misapprehend Sammi's holding. The Supreme Court
long ago held that international conduct such as price fixing and territorial
allocations among horizontal competitors is per se unreasonable and hence per se
unlawful under Section 1 of the Sherman Act. Timken Roller Bearing Co. v.
United States, 341 U.S. 593 (1951). The United States has long enforced this per
se law -- both civilly and criminally -- against international cartels that injure
United States consumers. E.g., Nippon Paper, supra. Sammi neither challenged
this well-established law nor hindered the United States' law enforcement efforts
pursuant to it. Rather, Sammi stands for a more modest proposition: since a
foreign restraint is within the jurisdictional reach of the Sherman Act only if it was
meant to have, and did have, some substantial impact in the United States, courts
should not assume that just because a foreign restraint is per se anticompetitive, the
restraint necessarily has an intended and substantial effect on the United States.
See 82 F.3d at 845; 1A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶
273b (2d ed. 2000). As we have already shown, however (USBr. 25-29), the
restraint in this case meets those requirements.

3. The United States also alleged in the alternative (ER 4 ¶ 7) that the
Restrictive Clause is unlawful under rule of reason analysis. That analysis requires
the pleading of a relevant product and geographic market, and the complaint did
so. ER 10 ¶ 33. The district court's rejection of this market as overbroad rests
largely on a failure to understand the possible significance of market definition in
this case. Market definition is not an end in itself: it is a tool for use in analyzing
the competitive effect of challenged conduct. The question in the case is whether
the undisputed exclusion of a major competitor unreasonably restricts competition.
Defendants make no serious attempt to explain why a determination of the precise
contours of the market would help in answering that question.(6) In any event, the
alternative market definitions mentioned by the district court would not materially
affect the competitive analysis and adverse consequences of the exclusionary
conduct.(7) USBr. 18-24.

Rather than come to grips with the United States' argument, defendants offer
only a collection of the district court's remarks without any effort to show why
those remarks make economic/legal sense in this case (LSLBr. 51-52). This
avoidance is not surprising, in light of the fact that defendants never argued below
that the market alleged was overbroad and instead argued a very different point --
recycled in slightly different form here (LSLBr. 29) -- that it is always legal to
agree to eliminate just one competitor.(8) Defendants' contention that courts "grant
motions to dismiss based on inadequate market definitions" (LSLBr. 52) misses the
point that they do so only when unsupportable market allegations are used to
establish a necessary element of the offense. Defendants' five cited cases
dismissed complaints that appeared to define markets too narrowly, thus
attempting to create a false impression of market power. Neither the district court
nor the defendants have contended that the market alleged in this case may create a
false impression of market power. Defendants cite no case that dismissed a
complaint because of an allegedly overbroad market definition.

The District Court's Dismissal Under Rule 12(b)(1) Was Error

The United States showed in its opening brief that its complaint and
supplemental material satisfied the common law standard for subject matter
jurisdiction as set forth in Hartford, which the FTAIA codified in slightly different
words; and that even if the FTAIA is read as substantively changing the prior law,
the United States sufficiently alleged that the Restrictive Clause has a "direct"
effect on United States commerce. But the United States also explained
(USBr. 15-16, 40-42) that regardless of how the FTAIA is interpreted, the
complaint fully meets the FTAIA's "direct, substantial, and reasonably
foreseeable" standard because it is properly analogous to the complaints in
Hartford that the Supreme Court unanimously determined met FTAIA standards.

The Effects on United States Commerce In This Case Parallel Those That Met FTAIA Standards in Hartford

The Supreme Court said in Hartford that the alleged restraint imposed by the
foreign reinsurers "plainly meets its [FTAIA's] requirements," 509 U.S. at 796
n.23. The Restrictive Clause therefore also plainly meets FTAIA requirements so
long as it is properly analogous to the restraint in Hartford. It is, and this Court
need go no further to reverse.

The foreign conduct of the London-based reinsurers that the Court found
sufficient for jurisdiction under the FTAIA was that they conspired to refuse new
reinsurance, or otherwise to "withhold reinsurance," id. at 776-77, which had the
effect of "eliminating" or making "almost entirely unavailable" (id. at 795) certain
kinds of primary insurance in the United States. The Court therefore accepted that
a restraint outside the United States satisfied the FTAIA's jurisdictional standard
when (1) a restraint on one product outside the United States (London-based
reinsurance) affected commerce in a related product in the United States (primary
insurance),(9) and (2) the restraint made the affected product unavailable in the
United States.

The foreign conduct in this case likewise involves a restraint outside the
United States on one product -- long shelf-life tomato seeds in Mexico -- that
affects commerce in a related product in the United States -- tomatoes -- and
makes the affected product (tomatoes grown from Hazera seeds) unavailable in the
United States. The victims of the restraint are United States purchasers of
tomatoes, just as the victims in Hartford were United States purchasers of primary
insurance. In fact, the effect on United States commerce is even more direct than
in Hartford because tomato seeds and tomatoes are so closely related as to share
the same genes. See ER 158 ¶ 8 (tomato seed "is not just an input, but rather is the
organic matter, the genetic material, that dictates what will grow"). Thus, the
present case parallels Hartford; the FTAIA requirements similarly are met; and the
district court order should be reversed.

The United States Satisfied the Traditional Standard for Jurisdiction Over Foreign Conduct, Which the FTAIA Codified in Slightly Different Words

1. In Hartford, the Supreme Court unanimously held, several years after
enactment of the FTAIA, that "it is well-established by now that the Sherman Act
applies to foreign conduct that was meant to produce and did in fact produce some
substantial effect in the United States." 509 U.S. at 796. The United States
submitted evidence, ER 162 ¶ 18, and defendants do not appear to deny, that the
Restrictive Clause was intended to affect United States commerce by keeping
Hazera seeds, and the tomatoes grown from Hazera seeds, out of the United States.
The United States also alleged that the Restrictive Clause substantially affects
United States commerce by making less likely the availability to United States
consumers of better-tasting fresh-market tomatoes in the winter and by affecting
the $250 million/year trade of winter tomatoes from Mexico. The United States
therefore established jurisdiction under the common law standard.

Defendants contend that the effect of the Restrictive Clause cannot be
substantial here because the Hazera seeds subject to the restraint are "a mere input
to another good ultimately intended for importation into the United States"
(LSLBr. 26-28). This position is wrong in several respects. First, as explained
previously, Hartford stands for the proposition that a jurisdictionally sufficient
effect can be created by a restraint abroad on product "A" that affects closely
related product "B" in the United States. It does not matter whether "A" can be
characterized as an "input" into "B." Second, tomato seeds have no use other than
growing tomatoes, so the connection between the "input" and "another good"
could not be closer. Third, defendants' hypotheticals (LSLBr. 27) are inapposite
because the Restrictive Clause does not merely affect the price of tomatoes in the
United States; the Clause totally prevents the affected product -- better quality
tomatoes grown from currently existing or to be developed Hazera seeds -- from
entering the United States.(10)

Defendants' reliance on Alcoa, Dee-K Enters., Inc. v. Heveafil Sdn. Bhd, 299
F.3d 281 (4th Cir. 2002), and the Areeda and Hovenkamp treatise (LSLBr. 26-28),
is misplaced. The quoted passages from Alcoa and Antitrust Law refer to restraints
made abroad that are "not intended" to affect United States commerce (and that
have far more attenuated effects on United States commerce). But the Restrictive
Clause was intended to affect United States commerce by keeping Hazera seeds
and tomatoes out of the United States. ER 161-62 ¶ 18 ("LSL included [the
Clause] to prevent Hazera from competing in or affecting in any way the markets
for tomato seeds and tomatoes in North America"). The citation to Dee-K is
misleading because the plaintiff there argued that the domestic standard for
jurisdiction should apply as set forth in McLain v. Real Estate Bd. of New Orleans,
Inc., 444 U.S. 232 (1980), not the Hartford standard.

2. In Hartford, the Supreme Court found unanimously that it is "unclear . . .
whether the [FTAIA]'s 'direct, substantial, and reasonably foreseeable effect'
standard amends existing law or merely codifies it." 509 U.S. 797 n.23. Given
this controlling finding, under settled rules of statutory construction the FTAIA
cannot be read as changing the pre-existing common law and instead should be
read as codifying it. USBr. 30-35.(11)

Defendants first argue that the pre-existing common law standard for
jurisdiction was confused (LSLBr. 39-40 & n.19). But the Supreme Court did not
see this supposed confusion when it pronounced the "well established" common
law standard: "the Sherman Act applies to foreign conduct that was meant to
produce and did in fact produce some substantial effect in the United States."
Hartford, 509 U.S. at 796.

Defendants fare no better arguing that construing the FTAIA as a
codification of the pre-existing law would read the word "direct" out of the statute
(LSLBr. 40). The concept of remoteness always was present in the common law
test for jurisdiction. USBr. 31-32. Indeed, defendants themselves acknowledge
this reality when they discuss Judge Hand's opinion in Alcoa (LSLBr. 26-27). No
separate test for directness was necessary because a restraint that is intended to
affect United States commerce and in fact does have a substantial effect would
never be considered too remote. By adding the word "direct," the FTAIA merely
made explicit what had been implicit, but did not change the substance. The
common law standard thus incorporates the concept of directness, and when the
United States met this standard it necessarily met the directness requirement of the
FTAIA. Similarly, when the district court treated the FTAIA as changing the
common law standard and imposed a more stringent jurisdictional test than is
required by the common law as stated in Hartford, it erred and must be reversed.

3. Defendants argue that the Restrictive Clause's effect on United States
commerce is speculative because neither Hazera nor anyone else has created a long
shelf-life seed suitable for large scale winter tomato cultivation in the United States
(LSLBr. 17-18, 30-31). This argument is misplaced and legally wrong.

Defendants' argument is misplaced because the district court treated the bar
on Hazera selling seeds in the United States as "domestic conduct" not subject to
Hartford or the FTAIA. The "foreign conduct" alleged, for which an effect on
United States commerce must be shown, is the bar on Hazera selling long shelf-life
seeds to Mexican growers who would export the bulk of the resulting tomatoes to
the United States. There is nothing speculative about the effect of that bar on
United States commerce, because it is undisputed that Hazera already has
"extended shelf-life" seeds suitable for winter cultivation in Mexico. ER 159-167
¶¶ 10, 15, 19, 27.(12)

If defendants' speculativeness argument were directed at the "domestic
conduct" part of the case, it would fail because the domestic anticompetitive effects
of the Restrictive Clause are sufficient to establish a Sherman Act violation. In
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir.), cert. denied, 122 S. Ct.
350 (2001), the en banc court affirmed Sherman Act liability for efforts to "squash
nascent, albeit unproven, competitors" offering "merely potential substitutes" for
an entrenched monopoly product. Id. at 79 (emphasis added). Moreover, restraints
eliminating only potential competition have been held to violate the antitrust laws,
seeYamaha Motor Co., supra, 657 F.2d at 978-79, as have mergers eliminating
competition to develop new technologies, FTC v. PPG Industries, Inc., 798 F.2d
1500, 1504-06 (D.C. Cir. 1986). The United States alleged that Hazera is a
potential seller of long shelf-life seeds in the United States, ER 3 ¶ 3, ER 12 ¶¶ 39,
40, ER 162-167 ¶¶ 20-27, and the very existence of the Restrictive Clause confirms
it. See United States v. Sargent Elec. Co., 785 F.2d 1123, 1127 (3d Cir. 1986)
("very existence" of a horizontal agreement "tends to show that the parties to it are
at least potential competitors. If they were not, there would be no point to such an
agreement.").

The United States' Allegations In Any Event Showed A "Direct" Effect

Even if the FTAIA is read as substantively changing the pre-existing
jurisdictional standard, the United States sufficiently alleged that the Restrictive
Clause has a "direct" effect on United States commerce under the most useful and
sensible interpretation of that term, which is proximate cause.(13) The Restrictive
Clause's bar against Hazera selling long shelf-life seeds to growers in Mexico is a
proximate cause of the effect in the United States: no better-tasting winter
tomatoes to be imported, and perhaps higher prices on those that are imported. See
USBr. 35-42.

Defendants argue that the word "direct" in the FTAIA unambiguously
(LSLBr. 38-39) means proceeding from one point to another "without deviation or
interruption" (LSLBr. 21); that under this interpretation the United States did not
allege a direct effect on United States commerce; and that proximate cause is not a
proper interpretation. They are wrong on all counts.

1. Few statutes of which we are aware are more ambiguous and less
susceptible to a "plain meaning" analysis than the FTAIA. In Hartford, the
Supreme Court found it "unclear" how the FTAIA might apply outside the context
of an export transaction. 509 U.S. at 797 n.23. The Court therefore did not know
how to apply the FTAIA to the vast majority of foreign conduct that might affect
United States commerce. Courts of appeals, with obvious understatement, have
called the statute "inelegantly phrased" and avoided reliance on it in whole or in
part. Nippon Paper, supra, 109 F.3d at 4; Carpet Group Int'l v. Oriental Rug
Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000).

2. Defendants' definition of "direct" as "without deviation or interruption"
is arbitrary and has no basis in the FTAIA. It is so narrow as to render "direct"
largely meaningless, because the core of foreign conduct affecting the United
States "without deviation or interruption" is conduct involving import commerce.
But the FTAIA expressly exempts import commerce from its jurisdictional
limitation. 15 U.S.C. 6a (excluding from Sherman Act conduct involving trade or
commerce "other than import trade or import commerce"). And so defendants'
definition of "direct" may preclude any jurisdiction over foreign commerce.

Moreover, to the extent that conduct involving foreign commerce other than
import commerce meets defendants' "direct" definition, it still would not promote
certainty or uniformity (LSLBr. 24). Instead, it would require courts to engage in
hairsplitting over precisely how much time or geographic distance must come
between a restraint and an effect in the United States for there to be a "deviation or
interruption." This will particularly burden government criminal prosecutions of
international cartels, for the defendants' proposed definition is a virtual invitation
to international cartels to structure their activities to create such complexities and
so to discourage prosecution. Defendants' attempt to justify their definition by
reliance on the Foreign Sovereign Immunities Act (LSLBr. 21-23) is groundless.
Nothing in the legislative history of the FTAIA attempted to draw from the FSIA.
Rather, the FTAIA legislative history looked to Sherman Act cases that did or did
not use the word "direct." USBr. 34-35 & nn. 21, 22.

3. By contrast to defendants' arbitrary definition, an interpretation of
"direct" as invoking proximate cause relates to the surrounding words in the
FTAIA, particularly "reasonably foreseeable." That definition gives "direct" a
grounding in a long tradition of tort law that courts know how to apply, and it
allows courts to consider public policy considerations where Congress intended
that courts make determinations of jurisdiction on a case-by-case basis.

While defendants claim that interpreting "direct" as proximate cause would
be redundant of other statutory terms (LSLBr. 23), they are mistaken. Proximate
cause obviously is not redundant of the term "substantial"; they are distinct
concepts, because "substantial" deals with impact or quantity, not causation. Nor
is proximate cause redundant of "reasonably foreseeable": an effect can be
reasonably foreseeable without having been proximately caused by an event.
Thus, it might be reasonably foreseeable that driving too fast would cause an
automobile accident, but speed might not be the proximate cause of the accident if
the negligence of other drivers or weather/road conditions are involved.
Defendants themselves conceded reasonable foreseeability for purposes of their
motion to dismiss but do not concede a proximate cause relationship, thereby
confirming that the two concepts are not identical. Under a proximate cause
interpretation of "direct," the FTAIA therefore would screen out cases in which
foreign conduct has a reasonably foreseeable effect in the United States, but the
effect is too remote from the conduct. Interpreting "direct" as meaning proximate
cause therefore does not make "direct" meaningless or surplusage.

Finally, there is also no merit to defendants' argument (LSLBr. 34), based
on Den Norske, that the complaint does not comply with the FTAIA's additional
requirement that the restraint's "effect gives rise to a claim" under the Sherman
Act. 15 U.S.C. 6a(2). This argument is irrelevant because that holding of Den
Norske turned on the particular injury alleged by a private plaintiff. But a case
brought by the United States never is based on a particular plaintiff's injury. When
"foreign conduct" violates the Sherman Act, the United States can sue if there is a
jurisdictionally sufficient effect on United States commerce.

In any event, the main effect of the "foreign conduct" here is not on "tomato
prices in the United States" (LSLBr. 34). Instead, the Restrictive Clause bars
Hazera, a major competitor and seed innovator, from selling long shelf-life seeds to
Mexican farmers, so that no resulting tomatoes are shipped to United States
consumers. Unlike Den Norske, the injury to consumers in the United States arises
directly from the anticompetitive effect in the United States.

The International Comity and Noerr-Pennington Doctrines Are Inapplicable

The district court's opinion does not mention comity or Noerr-Pennington
(LSLBr. 41-47). Defendants' attempt to invoke them is unsound for several
reasons.

Comity

While an appellee is entitled to defend the judgment on any ground
supported by the record, comity principles cannot save this judgment. Comity
applies only in the international arena, and therefore does not apply to the district
court's ruling on "domestic conduct." Since the district court's errors on the
domestic side of this case require reversal of the judgment by themselves,
international comity cannot defend the judgment.

Second, comity cannot bar enforcement actions by the United States.
"Comity refers to the spirit of cooperation in which a domestic tribunal approaches
the resolution of cases touching the laws and interests of other sovereign states."
Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the
Southern Dist. of Iowa, 482 U.S. 522, 543 n.27 (1987). But "courts are generally
ill equipped to assume the role of balancing the interests of foreign nations with
that of our own." Id. at 552 (Blackmun, J., concurring in part and dissenting in
part). Therefore, when the Executive Branch, which manages foreign relations,
determines that the interests of United States law enforcement outweigh any
possible detriment to our foreign relations, and accordingly decides to file a case,
separation of powers principles, as well as the Judiciary's own recognition of its
limitations in matters of foreign affairs, point to the conclusion that an "American
court cannot refuse to enforce a law its political branches have already determined
is desirable and necessary." Laker Airways Ltd. v. Sabena, 731 F.2d 909, 949
(D.C. Cir. 1984) (emphasis omitted). In United States v. Baker Hughes, Inc., 731
F. Supp. 3, 6 n.5 (D.D.C.), aff'd on other grounds, 908 F.2d 981 (D.C. Cir. 1990),
the court held squarely that comity concerns "are not a factor here. . . . [where] the
United States has decided to go ahead with the case." See alsoTimberlane Lumber
Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 613 (9th Cir. 1976) (higher
concern about the foreign implications of litigation in private suits, where "there is
no opportunity for the executive branch to weigh the foreign relations impact").(14)

Third, nothing in the record (as opposed to defendants' speculation, LSLBr.
44) suggests that adjudicating this case would interfere with any interests or
actions of the government of Israel. To the contrary, the Israel Antitrust Authority
deferred its own investigation into the LSL-Hazera agreements "until the results of
your [United States'] investigation are clarified." ER 195. The Authority also
thinks that this case would neither undermine any ongoing judicial proceeding in
Israel nor "impede any enforcement activity on our behalf against those
agreements should we decide to pursue it." ER 196. Since the outset of this case
more than two years ago, the government of Israel never has complained that its
interests somehow might be adversely affected.

Finally, even if comity analysis were appropriate, the Timberlane factors,
549 F.2d at 614, weigh heavily in favor of exercising jurisdiction:

The Degree of Conflict with Foreign Law or Policy

According to this Court's most recent pronouncement, comity "is limited to
cases in which 'there is in fact a true conflict between domestic and foreign law.'"
In re Simon, 153 F.3d 991, 999 (9th Cir. 1998) (quoting Hartford, 509 U.S. at
798).(15)
But there is no conflict between United States and Israeli law. Defendants
never have contended that Israeli law somehow required them to act in a way that
violates the Sherman Act, and the Israel Antitrust Authority says that the
Restrictive Clause may violate Israeli law. ER 196. And even if the Restrictive
Clause ultimately is determined to be valid as a matter of Israeli contract or
antitrust law, there would be no conflict because defendants could comply with
both Israeli law and United States law by simply not attempting to enforce the
Restrictive Clause in the United States.

The Nationality or Allegiance of the Parties and the Locations or Principal
Places of Business of the Corporations

All the defendants have their principal places of business in the United
States, and LSL receives its RIN-gene tomato seeds at its Arizona facility. ER 24.
Cf. In re Insurance Antitrust Litig., 938 F.2d 919, 933 (9th Cir. 1991) ("Insurance
Antitrust") ("the interest of an American court in being able to judge claims against
an American company is high"), aff'd in part, rev'd in part by Hartford.

The Extent to Which Enforcement by Either State Can Be Expected to
Achieve Compliance

The ongoing arbitration between LSL and Hazera in Israel is based on
contract law and is not an antitrust enforcement action by Israel, whose Antitrust
Authority has deferred to the United States' enforcement efforts. ER 195. This
case therefore is necessary to ensure antitrust enforcement, and an order from the
district court that enjoins the Restrictive Clause would allow Hazera to compete.

The Relative Significance of Effects on the United States as Compared With
Those Elsewhere

The Restrictive Clause keeps Hazera long shelf-life seeds, and the tomatoes
that would be grown from those seeds, out of the United States, and therefore
delays or makes less likely innovations that will allow United States consumers to
enjoy better fresh-market winter tomatoes. USBr. 8, 10, 27-29; ER 162-63, 166.
Nothing in the record shows any adverse effect in any foreign country.

The Extent to Which There is Explicit Purpose to Harm or Affect United
States Commerce

The purpose of the Restrictive Clause is to keep Hazera seeds, and the
resulting tomatoes, out of the United States. USBr. 26-27; ER 162 ¶ 18. Cf.
Insurance Antitrust, 938 F.2d at 934 (this factor "strongly weighs in favor of the
exercise of jurisdiction").

The Foreseeability of the Effects on American Commerce

Defendants conceded, for purposes of their motion to dismiss, that the
effects of the Restrictive Clause on American commerce were reasonably
foreseeble. USBr. 13 & n.8.

The Relative Importance to the Violations Charged of Conduct Within the
United States Compared With Conduct Abroad

The violation charged is the Restrictive Clause. The record does not indicate
where the 1987 agreement that created the Clause was negotiated or executed.
Although defendants assert, without citation, that the agreement was executed in
Israel (LSLBr. 8 n.4), a participant in the negotiations testified in deposition that it
was negotiated and executed in New York. See Addendum hereto. LSL also has
threatened and attempted to enforce the Clause in the United States. ER 162 ¶ 19.
By comparison, defendants' other conduct abroad is not the violation charged.

Noerr-Pennington

The undisputed facts -- chiefly that the Restrictive Clause was created in a
private contract and only years later was incorporated into a court judgment --
make that doctrine inapplicable.

First, the United States does not challenge any LSL petitioning of the Israeli
government, or any action of that government. Rather, the subject of this case is
the Restrictive Clause of the LSL-Hazera agreement. It is analogous to Columbia
Steel Casting Co. v. Portland General Electric Co., 111 F.3d 1427 (9th Cir. 1996),
a territorial allocation case where this Court rejected a Noerr-Pennington defense
based on the public utility commission's after-the-fact approval of the allocation:

Applying to an administrative agency for approval of an anticompetitive
contract is not lobbying activity within the meaning of the Noerr-Pennington
doctrine. In any case, PGE is not being held liable for filing the application
that resulted in the 1972 Order. PGE is being held liable for agreeing with
PP&L to replace competition with area monopolies in the Portland market.

Id. at 1446. Similarly, LSL's applications to Israeli arbitrators and courts for
approval of the Restrictive Clause are not Noerr-Pennington protected activity, and
LSL is not being held liable for the result of any litigation in Israel.(16)

Second, as Judge Posner has explained,

[Noerr-Pennington] does not authorize anticompetitive action in advance of
government's adopting the industry's anticompetitive proposal. The
doctrine applies when such action is the consequence of legislation or other
governmental action, not when it is the means for obtaining such action . . . .
Otherwise every cartel could immunize itself from antitrust liability by the
simple expedient of seeking governmental sanction for the cartel after it was
up and going.

In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 789 (7th Cir.
1999) (emphasis in original). LSL persuaded and/or coerced Hazera into an
anticompetitive contract and only later sought to make the Restrictive Clause
subject to judicial enforcement in Israel. And so Noerr-Pennington does not apply,
or else any territorial allocation agreement could be immunized after-the-fact. See
also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988)
(Noerr-Pennington inapplicable to standard-setting process of private association,
although association's code routinely was adopted into state and local law);
Industrial Investment Development Corp. v. Mitsui & Co., Ltd., 671 F.2d 876, 882
n.6 (5th Cir. 1982) (Noerr-Pennington does not apply "simply because
[defendants' lobbying] later resulted in [Indonesian] government action"), vacated
on other grounds, 460 U.S. 1007 (1983).

CONCLUSION

For the foregoing reasons, and those set forth in the United States' opening
brief, the district court's amended judgment should be reversed.

Proportionately spaced, has a typeface of 14 points or more and
contains 6,867 words.

Dated: November 20, 2002

_________________________

STEVEN J. MINTZ

CERTIFICATE OF SERVICE

I, Steven J. Mintz, hereby certify that today, November 20, 2002, I caused
two copies of the accompanying REPLY BRIEF FOR APPELLANT UNITED
STATES OF AMERICA to be served on the following by Federal Express:

1. Neither the fact that the agreement (which apparently was executed in New
York and contains New York and Israel forum selection provisions, ER 81 and
Addendum) was incorporated in an Israeli arbitration award in 1992, nor the fact
that an Israeli court confirmed that award in 1996, matters. The only Sherman Act
violation alleged by the United States is the Restrictive Clause. ER 12 ¶ 42.
Moreover, as LSL recently told this Court, in Israel "converting the arbitration
decision into a judgment is a virtually automatic process." LSL Reply to United
States of America's Opposition to Stay Appeal at 3 (October 1, 2002). The Israel
Competition Authority says that the Restrictive Clause "prima facie violate[s]"
Israeli antitrust laws and is "illegal and void, notwithstanding . . . any judicial
approval of that understanding or agreement." ER 195-96.

3. Defendants' assertions that LSL does not grow tomatoes; that most (or
even all) of defendants' conduct occurred outside the United States; and that most
long shelf-life seeds presently are sold and planted in Mexico (LSLBr. 5, 13-14,
18), are relevant only to whether the FTAIA, 15 U.S.C. 6a, applies to this case in
the first place. They are legally irrelevant to whether jurisdiction exists under the
statute because the key inquiry (as it also is under the traditional federal common
law test reiterated in Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 (1993)
("Hartford")) is whether the restraint at issue has a sufficient effect on United
States commerce, regardless of the nature of defendants' business, regardless of
where the restraint is imposed, and regardless of where defendants' conduct
occurs. SeeUnited States v. Nippon Paper Industries Co., 109 F.3d 1, 9 (1st Cir.
1997) (antitrust laws apply to "wholly foreign conduct which has an intended and
substantial effect in the United States").

4. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), the Supreme
Court held unanimously that under Rule 8(a), a short and plain statement that gives
the defendant fair notice of the plaintiff's claims will survive a motion to dismiss.
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited
exceptions," but the Court did not identify antitrust as an exception. Id. at 513.

5. The district court also committed procedural error by improperly relying on
unsupported factual assertions outside the complaint. USBr. 22-23.

6. Defendants' attempt to invoke the FTAIA on the subject of market
definition (LSLBr. 53) is erroneous because the district court considered market
definition only as it applied to "domestic conduct" for purposes of Rule 12(b)(6),
not Rule 12(b)(1). The district court did not consider the "domestic" allegations of
the complaint to have any jurisdictional problem.

7. Defendants do not deny that they have market power in the market for
"seeds designed to grow fresh-market tomatoes in North America during the winter
months," ER 10 ¶ 33, or in any part thereof. In particular, they do not deny the
complaint's allegation that they control a 70+% share of the relevant market, ER
10 ¶ 34, which must be taken as correct for Rule 12(b)(6) purposes. Rather, they
appear to deny market power in a contrived market of their own definition -- "the
sale of long-shelf life tomato seeds for open-field cultivation in winter in the
United States" -- a market in which they insist there is no commerce (LSLBr. 15-17).

10. Defendants also repeat the district court's aside that the restraint's effect
on the United States price of winter tomatoes imported from Mexico is not
substantial because the price of the seed is less than one percent of the price of
such tomatoes (LSLBr. 25-26). This is unresponsive to the United States'
argument that even a small increase in the price of tomatoes (or, conversely, a
decrease in price that would result from increased competition), when applied to an
annual market of $250 million, is substantial, and would be considered more than
"substantial" for establishing interstate commerce in cases of "domestic conduct."
USBr. 29.

11. Therefore, even if McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir.
1988) could be read to say that the FTAIA significantly changed the common law
(LSLBr. 38 n.17), it is trumped on this point by the Supreme Court's unanimous,
differing view in Hartford five years later.

12. Defendants further assert that Hazera has no "non-infringing" long shelf-life tomato seeds (LSLBr. 17), but Hazera takes the position that its "extended
shelf-life" seeds are not infringing, ER 11 ¶ 38, ER 164 ¶ 23, ER 165 ¶ 25, and the
scope of LSL's intellectual property rights is in dispute in Israel.

13. Defendants conceded, for present purposes, that the effect on United
States commerce was "reasonably foreseeable." USBr. 13 & n.8. As explained at
pp. 12-14 above and at USBr. 27-29, the effect was also "substantial."

14. For these reasons, this Court has held the analogous act of state doctrine to
be inapplicable in government enforcement actions. Clayco Petroleum Corp. v.
Occidental Petroleum Corp., 712 F.2d 404, 409 (9th Cir. 1983). And in United
States v. Alvarez-Machain, 504 U.S. 655, 669 & n.16 (1992), the Supreme Court
rejected a criminal defendant's claim that the federal district court lacked
jurisdiction over him because he had been forcibly abducted in Mexico and
brought to the United States for trial in violation of international law. The Court
concluded that international law principles or diplomatic concerns are "a matter for
the Executive Branch" and do not negate jurisdiction.

15. AccordNippon Paper, supra, 109 F.3d at 8 (comity applies only "in those
few cases in which the law of the foreign sovereign required a defendant to act in a
manner incompatible with the Sherman Act or in which full compliance with both
statutory schemes was impossible"); Filetech S.A. v. France Telecom S.A., 157
F.3d 922, 932 (2d Cir. 1998).

16. Beyond this, passive government approval of a private restraint is
insufficient to confer Noerr-Pennington immunity. See A.D. Bedell Wholesale Co.
v. Phillip Morris Inc., 263 F.3d 239, 251 (3d Cir. 2001). The Israeli court's 1996
confirmation of the 1992 arbitration award was passive, because according to LSL,
in Israel "converting the arbitration decision into a judgment is a virtually
automatic process." See Note 1, supra.